Experts at tax trial explain gender identity disorder

by Ethan Jacobs

Bay Windows

Thursday July 26, 2007

Attorneys for the Internal Revenue Service (IRS) spent the second day of a trial in which a transwoman is suing the federal agency for the right to deduct her medical expenses related to treatment for Gender Identity Disorder (GID) trying to make the case that sex-reassignment surgery is a cosmetic procedure rather than a medical necessity. IRS senior attorney John Mikalchus grilled Gay and Lesbian Advocates and Defenders' (GLAD) expert witness, psychiatrist Dr. George Brown, for more than four hours about the medical necessity of sex-reassignment surgery and other treatments for GID, asking him on multiple occasions to concede that the procedures are cosmetic. Brown, a psychology professor at East Tennessee State University and a board member of the World Professional Association for Transgender Health (WPATH), which issues the internationally recognized standards of care for GID treatment, refused to do so, but Mikalchus tried to hammer home that point himself. Mikalchus also suggested that surgery, hormones and other treatments for GID do not cure patients' cross-gender identification but merely reinforce it, and he said that the treatments for GID are an anomaly in the mental health profession.

"You wouldn't recommend liposuction for someone who's anorexic, would you?" Mikalchus asked Brown.

In response, Brown countered that sex-reassignment surgery does cure cross-gender identification. "They experience themselves as female. The body is aligned female. The symptoms no longer exist," said Brown.

Rhiannon O'Donnabhain, a transwoman from the South Shore, filed suit against the IRS after the agency told her she could not claim a deduction on her federal income tax for the medical costs associated with her treatment for GID, including her 2001 sex-reassignment surgery. O'Donnabhain's legal team, consisting of GLAD attorneys Karen Loewy, Ben Klein and Jennifer Levi, argued that GID is a disorder recognized by the medical community and that it is included in the Diagnostic Statistical Manual of Mental Disorders (DSM), one of the standard handbooks used by mental health practitioners. They brought in witnesses to testify that the treatment she sought, including her surgery, were well within the norms of treatment for GID and that the surgery was medically necessary. The case, O'Donnabhain v. Commissioner of Internal Revenue, is being argued in U.S. Tax Court in Boston before Judge Joseph H. Gale The trial began July 24.

The first day of the trial, O'Donnabhain took the stand and gave several hours of testimony, at times bursting into tears as she recounted her struggles with GID and her profound sense of being a woman trapped in the body of a man. As a child growing up in a devout Irish Catholic family in Rockland she had difficulty understanding and relating to her male peers, and she had a profound sense of discomfort in her own body. Starting at age 10 she began secretly trying on women's clothes, but she never discussed her struggles with gender with any of her family or friends. By age 26 she was married, and during their 22-year marriage, she and her wife had three children. But her strong feelings of being trapped in the wrong body, and her decision to keep quiet about those feelings, were a strain on the marriage, and she said she had great difficulty being physically intimate with her wife.

"I was thinking how much I wish I were female," said O'Donnabhain.

After they separated in 1992, her anxiety about her gender dysphoria intensified. In 1996 she began seeking treatment for her GID, beginning a journey of several years that involved therapy, hormone treatments, a year of living as female full-time, a series of surgical procedures to feminize her face and finally her 2001 sex-reassignment surgery.

O'Donnabhain said during her testimony that within the first week of going on the hormones "there was a sense of wellbeing ... They were overtaking the poisons in my system." She began noticing positive changes, including the development of breasts, but while these were all steps in the right direction she knew it was not enough.

"I wanted my male body to go away. I wasn't supposed to be this way," said O'Donnabhain.

She said she knew that surgery was the answer but she kept putting it off, afraid of the reaction of her children and her co-workers. She broke down in tears on the stand talking about one of her lowest points when she stood in her kitchen and, distraught about her gender dysphoria, grabbed a carving knife and wrestled with the urge to cut off her penis.

"I wanted the pain to go away. I wanted that male part of me to go away," O'Donnabhain choked out through her tears. She also said that she thought about committing suicide.

By 1999 she found the courage to make a plan to transition, and in 2001 she traveled to Portland, Ore., where plastic and reconstructive surgeon Dr. Toby Meltzer performed sex-reassignment surgery on her.

O'Donnabhain told the court that if she did not have surgery it would have cost her her sanity.

"If I didn't have surgery I would either be on drugs or an alcoholic. It was as simple as that. There was no other way," she said.

Two of GLAD's other witnesses, both of whom helped diagnose her GID, backed up her story. Her therapist, Diane Ellaborn, who specializes in treating people with gender-related conditions, said that she took a conservative approach to diagnosing her, waiting 19 sessions before concluding that she suffered from a severe form of GID. She said according to the standards set out by the WPATH, the leading international association of transgender-focused health professionals, the standard model of care for people with severe GID is triadic therapy, an approach that combines hormone treatments, a year spent living in the gender they feel they are inside, and, if those two steps succeed, surgery.

Ellaborn said after treating O'Donnabhain for about five years and seeing her progress through hormones and living as a woman, she wrote a letter on O'Donnabhain's behalf to Meltzer recommending surgery.

"In triadic therapy it is the prescribed therapy for Gender Identity Disorder," said Ellaborn.

Dr. Alex Coleman, a Brookline therapist specializing in gender identity issues, in addition to sexual orientation issues and child abuse and neglect, also said he felt surgery was the appropriate form of treatment for O'Donnabhain. Coleman, who is himself FTM, said Ellaborn referred O'Donnabhain to him to get a second opinion before she went for surgery. Coleman told the court that during a two-hour consultation with O'Donnabhain he evaluated her to determine if she had GID and to make sure that she did not have other mental health problems contributing to her desire for surgery. He came away convinced that her GID was genuine and severe and that she had pursued appropriate treatment.

Coleman told the court that despite O'Donnabhain's success with hormones and living as a woman, which included successfully coming out on the job in the construction industry, her gender dysphoria remained a debilitating condition.

He said that "not withstanding having [pursued treatment through hormones and facial feminizing surgery] and living this way she still felt a significant and profound amount of stress that her body was not conforming to her gender identity." Coleman also wrote a letter to Meltzer recommending surgery.

On cross examination the IRS's chief counsel, Mary P. Hamilton, worked to cast doubt on the credentials of O'Donnabhain's therapists, on the validity of GID as a medical condition, on the usefulness of sex reassignment surgery, and on O'Donnabhain herself.

Hamilton repeatedly suggested, in her cross examinations of O'Donnabhain and her therapists, that other factors besides GID may have caused O'Donnabhain's mental turmoil. She produced records showing that O'Donnabhain has been in treatment for depression with a psychiatrist both before and after her surgery, and she also questioned them about O'Donnabhain's Attention Deficit Disorder (ADD). She asked Ellaborn and Coleman if they felt O'Donnabhain's divorce could have led to her depression and anxiety, but they said no.

Hamilton also suggested that O'Donnabhain's symptoms of GID were not severe enough to make surgery a medical necessity. She pointed to a letter written by O'Donnabhain explaining that she had put off sex-reassignment surgery for two years until her son graduated from high school.

"In fact you were able to choose the timing of your changes," Hamilton told O'Donnabhain. "You could wait two years until your child went to college to continue with your changes."

Hamilton argued that because O'Donnabhain was able to come out on the job after taking hormones and presenting as female, she did not meet the requirements of the GID diagnosis of being significantly impaired.

"Isn't this inconsistent with someone who is significantly impaired?" she asked Ellaborn.

GLAD's Loewy followed up that question with Ellaborn, asking if O'Donnabhain's continued employment meant that she was no longer impaired. Ellaborn said it did not.

"She was able to both simultaneously think about her gender disphoria and do her job," said Ellaborn.

Hamilton also called into question the credentials and reliability of the therapists. In particular she singled out Coleman, asking him to disclose whether or not he himself is transgender. GLAD objected, claiming that the only reason to ask the question was to prejudice the court against the witness, but Hamilton said the question was important to show potential bias. Judge Gale permitted Hamilton to ask the question, and Coleman disclosed that he was an FTM.

On the second day of the trial Mikalchus continued the tactic of questioning O'Donnabhain's GID diagnosis, this time through his cross-examination of Brown. He asked Brown if people seeking treatment for GID might instead have autogynephilia, a concept promoted by controversial sexologist Ray Blanchard that suggests some transwomen may be men who are aroused by the thought of having a vagina. Brown said he did not subscribe to Blanchard's theories, which have been widely rejected by the transgender community.

Mikalchus also posited that O'Donnabhain's therapists misdiagnosed her and that she may suffer from transvestic fetishism, a disorder in which men are sexually aroused by dressing in women's clothes.

Brown countered by saying, "People who are transvestic fetishists don't want their penises cut off ... It's very important to them."

The trial is expected to run through the end of this week. After that the trial will resume later next month to allow one more witness to testify.


Gender Identity Disorder FAQ

Q: Is Gender Identity Disorder considered a mental disorder?
A: Gender Identity Disorder (GID) was added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1994, replacing the diagnosis of transsexualism from earlier editions.

Q: How many people have Gender Identity Disorder?
A: According to the World Professional Association for Transgender Health (WPATH), there are no firm estimates on prevalence of GID, but a study conducted in the Netherlands found GID in 1 in 11,900 males and 1 in 30,400 females.

Q: What is the recommended treatment for someone with Gender Identity Disorder?
A: According to the standards of care set forward by WPATH, the standard approach to treating GID can involve three prongs: hormone therapy, life experience presenting as the gender with which one identifies and surgery. But WPATH cautions that not all GID patients want or require all three forms of treatment.

Q: What is required before a surgeon will perform sex-reassignment surgery?
A: Under the WPATH standards, a person undergoing treatment for GID must present their endocrinologist with one letter from a mental health professional in order to receive hormone therapy. In order to receive genital surgery they must present the surgeon with letters from two mental health professionals testifying to the patient's GID diagnosis and recommending surgery as treatment.

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